Justice Rajiv Shakdher during panel discussion on Free Speech said the only the press can show mirror to Emporers

Agreeing with this point of view, Madras High Court judge, Justice GR Swaminathan said that the scope of “emperor” would also include the Courts and Judges.

It is only the press that can show the mirror to the emperor and say that the “emperor is not wearing any clothes”, Justice Rajiv Shakdher said on Saturday during an online discussion on Freedom of Speech.

The Delhi High Court Judge was on a panel along with Madras High Court’s Justice GR Swaminathan and Advocate Sanjay Pinto to discuss Freedom of Speech as part of the 15th-anniversary lecture series organized by the HSB Partners, Advocates.

Justice Shakdher observed that Article 19(1)(a) is one of the crown jewels of the Constitution of India. freedom of the press is intrinsic to freedom of fpeech under Article 19(1)(a), he said.

He went on to observed that our Constitution does not specifically include freedom of the press in the ambit of Article 19(1)(a) unlike in the American Constitution.

However, the Courts have, through their judgments, held freedom of the press to be a part of Article 19 (1)(a), Justice Shakdher said citing Anuradha Bhasin’s judgment as the latest example.

“Unlike American Constitution, our Constitution does not find mention of Right to Freedom of Press in Article 19(1)(a). But through judgments, with the decision in Anuradha Basin case being the latest, Courts have reiterated that Article 19 includes Freedom of Press”, he said.

The Judge went on to say that the Madras High Court has been at the forefront in upholding this right, citing the example of the R Rajagopal case and the N Ram case.

In the May 21 N Ram judgment, the Madras High Court had emphasised that criminal defamation proceedings cannot be misused by the State to throttle democracy or settle political scores with adversaries.

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The Court made the observation while allowing a batch of petitions by various media houses to quash defamation proceedings launched by the Tamil Nadu government over press reports dating between 2011-2013.

During yesterday’s discussion, Justice Shakdher went on to observe that,

“According to me only the Press can show the mirror to the emperor and say that the ’emperor is not wearing clothes,’ Triggering the criminal process under defamation law cannot be the way to go forward.”

Justice Rajiv Shakdher

Agreeing with this point of view, Justice GR Swaminathan said that the scope of “emperor” would also include the Courts and the Judges. He added that judges have to be mindful to not resort to initiating defamation and contempt proceedings against journalists. He opined,

“The Constitution will not be amended tomorrow… but we Judges can take a vow that we will not initiate or take recourse to criminal contempt or proceedings against a journalist or Press… At least I will not.”

He noted that while Article 19(1)(a) has reasonable restrictions under Article 19(2), the right itself must be construed expansively and the restrictions in a limited scope. Justice Swaminathan said,

“I believe that Article 19(1)(a) should be expansively construed and Article 19(2) should be construed in a very limited manner.

Advocate and former journalist Sanjay Pinto agreed with the two Judges to say that the role of the media is required to be adversarial to speak truth to power. Pinto said,

“For a Free Press, it is important that defamation law is not used against journalists. The trial is a punishment in these cases and there needs to be a slight room for error because often what is incorrect is not always defamatory.”

However, in the time of broadcast TV news, there is a need for a balance to be drawn, opined the members of the discussion panel.

Justice Shakdher opined that there is a need for self-censorship because while freedom of press is integral there is a need to draw a balance.

Justice Swaminathan said that when live broadcast news is used as platform for controversial opinions, the news anchors may dissociate themselves from such opinions.

However, shedding light on what has become of broadcast news, Justice Shakdher said that broadcast news has become commerce. Pinto, adding to this sentiment said that TV news is now a mad rat race for TRPs owing to which the news anchors cater to the audience which now has a voyeuristic tendency.

“There is a race for TRPs… why is it that NDTV does not have the highest TRPs despite having a strong editorial ethic and despite speaking truth to power is because people now have a voyeuristic tendency and prefer to watch shouting matches”, Pinto said.

Pinto further argued that Primetime anchors are no longer speaking truth to power but are acting as cheerleaders.

“So self-regulation may not work because everyone is this mad rat race for TRPs. Content is no longer the king, ‘masala’ is the king.”

Advocate Sanjay Pinto

The panel also discussed the impact of social media, fake news and the need for regulation in these respects.

While speaking on rise of fake news, Justice Swaminathan also remarked that “just like how we are now in a time where we have to live with Corona, we are also in a time where we have to live with fake news.”

Notably, it was also opined that there may be a need for regulating the content on social media given that the same may become tools to hate speech.

On this topic, Justice Shakdher added that social media posts which may offend the sentiments of some people, but do not degrade the ethos of plurality are not criminally actionable.

On the other hand, he added, “Posts which target a particular community, section, and degrade the ethos of plurality our Constitution stands for are perhaps to be dealt with.”

He also noted that there needs to be clarity on what amounts to actionable hate speech. He observed, “Content such as satire cannot be labelled as hate speech because the dispensation is thin-skinned.”

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